Manas v State of Queensland [2006] FCA 413

FEDERAL COURT OF AUSTRALIA

Manas v State of Queensland [2006] FCA 413 JOHN MANAS ON HIS OWN BEHALF AND ON BEHALF OF THE MUALGAL PEOPLE v STATE OF QUEENSLAND QUD 6003 of 2002 DOWSETT J 13 APRIL 2006 BRISBANE IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLANDDISTRICT REGISTRY QUD 6003 OF 2002

BETWEEN: JOHN MANAS ON HIS OWN BEHALF AND ON BEHALF OF THE MUALGAL PEOPLE

APPLICANT

AND: STATE OF QUEENSLAND

RESPONDENT

JUDGE: DOWSETT J DATE OF ORDER: 13 APRIL 2006

WHERE MADE: BRISBANE

THE COURT NOTES THAT:

A. The applicant has made native title determination application No QUD 6003 of 2002 ("the application") in relation to the area identified in order 1 below (the "determination area"). B. The applicant and the State of Queensland ("the parties") have reached an agreement as to the terms of a determination of native title to be made in relation to the determination area; and C. The parties have applied to the Federal Court of Australia for a consent determination that native title exists in relation to the determination area. Being satisfied that a determination in the terms sought by the parties would be within the power of the Court, and it appearing appropriate to the Court that the application be disposed of in this way. BY CONSENT THE COURT DETERMINES THAT: 1. Native title exists in relation to the land and waters on the landward side of the High Water Mark of Lot 185 on Crown Plan TS236 known as Murrabar Islet (also referred to as Channel Island, and Murbayl Islet) Lot 13 on Crown Plan TS247 known as Sarbi Islet (also referred to as Bond Island), Lot 14 on Crown Plan TS247 known as Iem Islet (also referred to as North Possession Island), Lot 116 on Crown Plan TS277 known as Zagarsup Islet (also referred to as Zagarsum and also known as Tobin Island), Lot 117 on Crown Plan TS277 known as Kulbi Islet (also referred to as Portlock Island), Lots 113-115 on Crown Plan TS276, Lot 134 on Crown Plan TS277, Lot 10 on USL36708 known as Muknab Rock, and Lot 4 on USL36712 known as Kapril Rock and shown on the plan in Schedule 1 to this order. 2. The persons holding the communal or group rights comprising the native title are set out in Sch 2 to this order. 3. The nature and extent of the native title rights and interests in relation to the determination area are: (a) to possession, occupation, use and enjoyment of all land in the determination area to the exclusion of all others; and (b) in relation to water the right to: (i) hunt and fish in or on, and gather from, the water for the purpose of satisfying personal, domestic or non-commercial communal needs; and (ii) take, use and enjoy the water for the purpose of satisfying personal, domestic or non-commercial communal needs; provided that such right to water does not confer any right to possession, use or enjoyment of the water to the exclusion of others. 4. Such native title is subject to, and exercisable in accordance with: (a) the laws of the Commonwealth of Australia and the State of Queensland including the common law; (b) traditional laws acknowledged, and traditional customs observed by the native title holders; and (c) other interests in relation to the determination area as set out in Sch 3 to this order, the relationship between the native title and those other interests being that: (i) such other interests continue to have effect, and the rights conferred by, or held thereunder, may be exercised notwithstanding the existence of the native title; and (ii) such other interests and any activity done in exercise of the rights conferred thereby, or held thereunder, prevail over the native title and any exercise of the native title. 5. If a word or expression is not defined in this order, but is defined in the Native Title Act 1993 (Cth), then it has the meaning given to it in the Native Title Act 1993 (Cth). In addition to the other words defined in this order: (a) "high water mark" has the meaning given to it in the Land Act 1994 (Qld); (b) "laws of the Commonwealth of Australia and the State of Queensland" means the common law and the laws of the Commonwealth of Australia and the State of Queensland; (c) "local government" has the meaning given to it in the Local Government Act 1993 (Qld); and (d) "water" has the meaning given to it in the Water Act 2000 (Qld). 6. That the native title be held in trust by the Mualgal (Torres Strait Islanders) Corporation for the benefit of the native title holders. 7. Each party to the proceedings is to bear its own costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.